OFCCP Seeks to Impose New Certification Requirement on Contractors

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On September 14, 2020, the Office of Federal Contract Compliance Programs (OFFCP) requested approval from the Office of Management and Budget to require government contractors to certify on an annual basis that they are in compliance with their affirmative action program (AAP) obligations.  Under OFCCP’s proposal, federal contractors are required to certify on an annual basis that they have complied with applicable AAP requirements.  The certification would be done through a new Affirmative Action Program Verification Interface online platform developed by OFCCP.

OFCCP’s request for approval is not completely clear about how the agency intends to use this information, but it appears reasonable to expect an uptick in enforcement activity against contractors who fail to certify compliance with their AAP obligations. In one portion of the request, OFCCP notes that its new platform will allow OFCCP to “run a comprehensive and informative report identifying the AAP status of covered federal contractors.”  The request does not address whether a contractor will face additional consequences, such as for false claims, if it certifies its AAPs are in compliance but OFCCP later determines that certification was incorrect.

Also on September 14, 2020, OFCCP published a Comment Request in the Federal Register about the new certification requirement.  OFCCP expressed particular interest in comments addressing:

1.      The proposed frequency and level of the information collection;

2.      Whether the proposed collection of information is necessary for OFCCP’s enforcement and compliance assistance functions, including whether they will have practical utility;

3.      The accuracy of OFCCP’s estimate of the burden of the proposed information collection;

4.      Proposals to enhance the quality, utility, and clarity of the information to be collected; and

5.      Proposals to minimize the burden of the information collection to respondents.

This new certification likely signals an increase in OFCCP enforcement activity, at least against the low hanging fruit of contractors who fail to certify their compliance with AAP requirements.  The impending requirement that contractors affirmatively certify AAP compliance only emphasizes the need for contractors to proactively review their AAPs and ensure compliance with all of OFCCP’s requirements. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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